Tag: ICO powers

Lock up your data

Posted on | by Timothy Pitt-Payne KC

The importance of ensuring the security of personal data has been highlighted in a recent press release from the ICO dated 4 June 2009. The ICO has found Salford Royal NHS Foundation Trust in breach of the Data Protection Act, after a desktop computer containing sensitive personal information relating to around 3,500 patients was stolen. Although the computer was password protected, it was not encrypted or secured to a desk.

A formal undertaking has been signed by the Trust. It will ensure that: appropriate security measures are in place to restrict access to areas where personal information is stored; desktop computers are secured to desks to prevent easy removal; any personal data required to be held on a portable device is suitably encrypted; and personal details are not retained on any computer for longer than is required.

Mick Gorrill, Assistant Information Commissioner at the ICO, emphasised that the worrying trend of personal data losses must be rectified. He said:

“I am increasingly concerned about the way some NHS organisations are failing to securely hold people’s health and personal information. Organisations must implement appropriate safeguards to ensure personal details about patients do not fall into the wrong hands.”

Many thanks to Andrew Smith, currently a pupil at 11KBW, for preparing a first draft of this post.

Doing it by the book

Posted on | by Timothy Pitt-Payne KC

The Information Commissioner’s Office has today announced the latest version of the Privacy Impact Assessment Handbook.  As the title indicates, its purpose is to help organisations to identify and address the privacy risks of their activities.

Following the HMRC data breach in November 2007, the Cabinet Office introduced a requiring for all central Government departments and their agencies to conduct Privacy Impact Assessments (PIAs) when developing new systems. The ICO encourages all organisations to incorporate data protection safeguards into any new project involving personal information.

The handbook is in two parts: Part I (the first two chapters) gives an overview of the PIA process, with detailed information about privacy, common risks, and possible solutions; Part II  then gives a practical guide to conducing a PIA.  There are also four appendices, with examples of screening questions, checklist templates, and privacy strategies.

The handbook should help organisations to make reasoned judgments about the privacy implications of new projects or technological innovations. Some of the recommendations may overlap with privacy work already being done by organisations. A PIA does not have to be conducted as a totally separate exercise; indeed, it may be helpful to look at privacy issues in a broader policy context.

Many thanks to Andrew Smith, currently a pupil at 11KBW, for researching this post and preparing a first draft.

 

Who blacklists the blacklisters?

Posted on | by Timothy Pitt-Payne KC

In March this year the Information Commissioner took enforcement action against the Consulting Association, which had been operating a secret blacklist of employees in the construction industry, including details of trade union activity.  Today the Department for Business, Enterprise and Regulatory Reform has announced that new regulations will be introduced to outlaw the use of blacklists in this way.  There is a power to regulate under section 3 of the Employment Relations Act 1999, but so far it has never been used.  A consultation exercise is promised for early summer.  Draft regulations were previously prepared in 2003, and there was full consultation; so this time round the consultation will be shorter than the normal 12 week period.

It is very interesting to see such a direct link between action by the ICO, and new regulations.  The Government line had previously been that there was no evidence that regulations were needed.  The ICO has now provided them with their missing evidence.

Blacklists have a long history.  The Economic League attracted controversy in the 1980s (and was eventually disbanded in 1994); apparently it had a list of 22,000 political subversives, including one Gordon Brown MP.

Employment vetting is much in the news at present and is clearly attracting great interest.  We are currently considering an exciting project in this area:  watch this space!

California court says don’t cry before you’re hurt

Posted on | by Timothy Pitt-Payne KC

In November 2007 it was announced that HMRC had lost two CDs containing personal information about 25 million people.  Since then there has been a steady stream of stories about data losses, mainly from the public sector.

The Data Protection Act 1998 requires appropriate measures to be taken against the accidental loss of personal data.  Breach of this requirement can lead to enforcement action by the Information Commissioner. An individual whose data was lost could claim compensation from the data controller under section 13 of the Act, but only on proof of damage.  If the individual had suffered identity fraud as a result of the breach then this would probably be sufficient.  What if the individual argued that he was now at a higher risk of ID fraud, even though no fraud had yet taken place?  Would this count as damage?

A US district court in California has recently considered a similar question.  In Ruiz v Gap and Vangent a laptop was stolen containing unencrypted personal data of 750,000 Gap job applicants.  In a class action, the plaintiff sued for negligence, contending that he and the other class members had suffered damage consisting of exposure to an increased risk of ID fraud.  The Court granted summary judgment to the defendants and dismissed the claim.  Speculative harm, or the threat of future harm, was not enough for a cause of action in negligence.  The plaintiff relied on cases where recovery had been allowed for medical monitoring after negligent exposure to toxic substances; the court rejected the analogy.  It also noted that Gap had informed those whose information was on the laptop, and had offered to provide them with 12 months of free credit monitoring.  The plaintiff had not taken up this offer.

In policy terms it is questionable whether strengthening individual rights of action is the best way to deal with data loss.  Of course, individuals who suffer direct financial loss – through ID fraud or otherwise – should be compensated.  But in the Ruiz type of claim individual damages are likely to be modest.  There is no great social benefit in spending a lot of time and money in order to provide a wide class of individuals with low-level compensation.  Instead the focus should be on deterring breaches and avoiding recurrence.  The Information Commissioner’s new power to fine for serious data protection breaches (DPA section 55A) is a step in the right direction, though not yet in force.

If the UK regulatory framework needs further strengthening then one option would be legislation requiring data controllers to notify affected individuals where information is lost or stolen.  Last year the Thomas/Wolpert data sharing review recommended notification to the Information Commissioner as good practice, but not as a mandatory requirement.  The Government agreed.  Its response (see page 19) made clear that it had considered, and rejected, the possibility of a US-style law requiring notification of data breaches to the individuals affected.

Incidentally, I found the Ruiz case via the excellent blog maintained by InfoSecCompliance LLC, a US firm specialising in privacy, information law and data security. David Navetta is their founding member.

DPA/FOIA overlap

Posted on | by Timothy Pitt-Payne KC

The overlap between FOIA and the DPA gives rise to  a number of difficult problems.

In a paper just posted on 11KBW’s website (and originally delivered to a JUSTICE/Sweet & Maxwell conference in December 2008) I discuss some of these issues.  In particular, I deal with the practical problems that arise when an individual makes a request for information to a public authority and some (but not all) of the information constitutes his own personal data.  Because the request falls under both the DPA and FOIA, the Information Commissioner will need to deal with any complaint under two different legal regimes; if the requester subsequently appeals, the Information Tribunal will not have jurisdiction to deal with all the issues raised by the request.  The article suggests that the present position is unsatisfactory and discusses options for reform.

Reviewing the situation

Posted on | by Timothy Pitt-Payne KC

Under FOIA, there is no statutory duty on public authorities to operate an internal review procedure relating to their handling of FOI requests.  There is however an incentive for them to do so – if a review procedure  is available but has not been exhausted then the Commissioner can decline to entertain a complaint from the requester under FOIA section 50. 

Section 45 of the Act enables the Secretary of State to issue a Code of Practice giving guidance to public authorities about how they should operate their functions under the Act.  The Commissioner can make a practice recommendation (under section 48) where a public authority’s practice appears not to comply with the Code.

The Code issued under section 45 in November 2004 states that authorities should operate a review procedure, with decisions being made within a reasonable time.  In February 2007 the Commissioner issued guidance that a reasonable time for completing an internal review is 20 working days from the date of the request; in a small number of cases it might be reasonable to take longer, but in no case should the time taken exceed 40 days.

Today the Information Commissioner’s Office (ICO) has issued a press release about a Practice Recommendation addressed to Greater Manchester Police (GMP) dated 31st March 2009.   The Recommendation expresses concern both about the time taken by GMP to deal with internal reviews (over 150 working days in one case) and the apparent inaccuracy of some of the information provided to the ICO by GMP.  The Commissioner recommends that GMP should take steps to ensure its future compliance with the time limits in the ICO’s February 2007 guidance.   Paragraph 52 of the recommendation is significant, emphasising the ICO’s willingness to take formal action where there is continuing non-compliance with the Code. 

Incidentally, although the Practice Recommendation refers to the ICO’s February 2007 guidance, new guidance about internal reviews (dealing with both FOIA and EIR) was issued on 16th February 2009.  A useful summary of recent guidance issued by the ICO is available here, courtesy of the FOI blog maintained by the Campaign for Freedom of Information.

I am grateful to Andrew Smith (currently a pupil at 11KBW) for drawing the Practice Recommendation to my attention and helping to draft this post.